Citation NR: 9732148
Decision Date: 09/22/97 Archive Date: 09/29/97
DOCKET NO. 96-23 922 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to an increased rating for bursitis of the
left shoulder, currently evaluated as 20 percent disabling.
2. Entitlement to an increased rating for low back strain,
currently evaluated as 20 percent disabling.
3. Entitlement to an increased (compensable) rating for left
shin splint.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Milo H. Hawley, Counsel
INTRODUCTION
The veteran apparently had active service from November 1972
to February 1995.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 1995 decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio.
The veteran initially perfected appeals with respect to the
issues of entitlement to service connection for nasal airway
obstruction and shin splints of the right leg. However, in
November 1996, the veteran submitted a signed, written
statement indicating his desire to withdraw the issues of
entitlement to service connection for shin splints of the
right leg and nasal airway obstruction from his appeal.
Since these issues have been withdrawn, they will not be
considered by the Board. 38 C.F.R. § 20.204 (1996).
CONTENTIONS OF APPELLANT ON APPEAL
It is contended that the veteran's bursitis of the left
shoulder, low back strain, and left shin splints are more
disabling than currently evaluated. The veteran asserts that
he has pain in his left shoulder when he lifts his left arm
higher than shoulder level. He asserts that he has low back
pain which varies in degree and radiates into his left leg.
It is also contended that he develops pain in the left shin
area after use which bothers his left knee.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that a preponderance of the
evidence is against an evaluation greater than 20 percent for
bursitis of the left shoulder and against an evaluation
greater than 20 percent for low back strain, but that the
evidence is at least in equipoise and thus supports the grant
of a 10 percent evaluation for left shin splints.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The veteran's bursitis of the left (minor) shoulder is
not manifested by fibrous union of the humerus, ankylosis, or
limitation of motion below shoulder level.
3. The veteran's service-connected low back strain is
manifested by not more than moderate limitation of motion, is
not shown to have severe with listing of the whole spine to
the opposite side, positive Goldthwait's sign, marked
limitation of forward bending in standing position, loss of
lateral motion with osteoarthritic changes, or narrowing or
irregularity of joint space, or any of the above with
abnormal mobility on forced motion, and intervertebral disc
syndrome is not demonstrated.
4. The veteran's service-connected left shin splints are
manifested by slight knee disability, but moderate knee or
ankle disability is not demonstrated.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 20 percent for
bursitis of the left shoulder have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.10,
Part 4, Diagnostic Codes 5200, 5201, 5202, 5203 (1996).
2. The criteria for a rating in excess of 20 percent for low
back strain have not been met. 38 U.S.C.A. §§ 1155, 5107;
38 C.F.R. §§ 4.1, 4.7, 4.10, Part 4, Diagnostic Codes 5292,
5293, 5295 (1996).
3. The criteria for a 10 percent evaluation for left shin
splints have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R.
§§ 4.1, 4.7, 4.10, Part 4, Diagnostic Code 5262 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As a preliminary matter, the Board finds that the veteran's
claims are plausible and capable of substantiation, and thus,
well grounded within the meaning of 38 U.S.C.A. § 5107(a).
When a veteran submits a well-grounded claim, VA must assist
him in developing facts pertinent to that claim. The veteran
has been afforded multiple VA examinations, treatment records
have been obtained, and the veteran has been afforded the
opportunity to present testimony at a personal hearing. The
Board is satisfied that all available relevant evidence which
may be obtained has been obtained regarding the claims, and
that no further assistance to the veteran is required to
comply with 38 U.S.C.A. § 5107(a).
In accordance with 38 C.F.R. §§ 4.1, 4.2 (1996) and
Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has
reviewed the service medical records and all other evidence
of record pertaining to the history of the veteran's service-
connected disabilities. The Board has found nothing in the
historical record which would lead to the conclusion that the
current evidence of record is not adequate for rating
purposes. The Board is of the opinion that this case
presents no evidentiary considerations, except as noted
below, which would warrant an exposition of the remote
clinical history and findings pertaining to the disabilities
at issue.
Disability evaluations are determined by applying the
criteria set forth in the VA Schedule for Rating Disabilities
(Rating Schedule) found in 38 C.F.R. Part 4 (1996). The
Board attempts to determine the extent to which the veteran's
service-connected disabilities adversely affect his ability
to function under the ordinary conditions of daily life, and
the rating assigned is based, as far as practicable, upon the
average impairment of earning capacity in civil occupations.
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Regulations
require that where there is a question as to which of two
evaluations is to be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7.
I. Left Shoulder
The report of a July 1995 VA orthopedic examination reflects
that the veteran reported that he had injured his left
shoulder lifting weights. He complained of pain mainly in
the area of the trapezius muscles in the shoulder and in the
area under the deltoid muscle. He reported that the pain
occurred mainly when he tried to extend, abduct, and forward
flex his arm. Examination of the left shoulder revealed very
good muscular development. There was some tightness of the
left trapezius muscle. Abduction and forward flexion of the
left arm was accomplished to 160 degrees. The veteran
reported that there was pain if he raised his arm any higher.
Internal and external rotation was to 90 degrees without
pain. There was a small amount of crepitus noted in the
shoulder. The left shoulder had no tenderness or swelling.
X-rays of the left shoulder revealed no abnormality. The
diagnoses included myositis of the left trapezius muscle and
bursitis of the left shoulder.
An October 1995 VA outpatient treatment record reflects that
the veteran was seen with the complaint of increased left
shoulder pain of a four-day duration. Decreased range of
motion was noted and the diagnosis was left shoulder
bursitis. He was seen again in September 1995 with
complaints relating to his left shoulder. At that time,
elevation was accomplished to 180 degrees with pain.
During the veteran's personal hearing held before a hearing
officer at the RO in November 1996, he testified that when he
lifted his left arm just a little bit higher than his
shoulder it hurt. He also testified that there was pain when
he rotated his arm. He indicated that the pain was constant
and that he had been prescribed muscle relaxers and pain
medication. The veteran indicated that he was right-handed
and that he had not lost time from work due to his left
shoulder.
The report of a December 1996 VA orthopedic examination
reflects that the veteran reported increasing left shoulder
pain and loss of left shoulder motion. On examination, there
was guarding of motion of the left arm while removing upper
clothing. There was no swelling or bone deformity. There
was spasm noted in the left trapezius muscle. Abduction was
accomplished to 90 degrees and forward flexion was
accomplished to 90 degrees. Any further motion beyond this
was complained of as being painful. The report of December
1996 X-rays of the left shoulder indicates no abnormalities.
The diagnoses included left shoulder bursitis.
The veteran's service-connected left shoulder bursitis has
been evaluated as 20 percent disabling under Diagnostic Code
5203. This is the maximum evaluation which may be assigned
for the minor extremity under Diagnostic Code 5203.
Diagnostic Code 5201 provides that limitation of motion of
the minor extremity to 25 degrees from the side warrants a
30 percent evaluation. Limitation of motion of the minor
extremity to midway between the side and shoulder level
warrants a 20 percent evaluation, as does limitation of
motion of the minor extremity to shoulder level. Diagnostic
Code 5202 provides that fibrous union of the humerus of the
minor extremity warrants a 40 percent evaluation. Diagnostic
Code 5200 provides that intermediate ankylosis between
favorable and unfavorable of the scapulohumeral articulation
of the minor extremity warrants a 30 percent evaluation.
The Board finds that the criteria required for a disability
evaluation in excess of 20 percent for left shoulder bursitis
have not been met. Although the Board finds the veteran's
testimony to be credible, there is no subjective evidence or
objective competent medical evidence which reflects that,
even with consideration of functional loss due to pain,
weakened movement, excess fatigability, or incoordination as
would be required by 38 C.F.R. §§ 4.40, 4.45, 4.59 (1996) to
support a finding that the veteran's limitation of motion of
the left upper (minor) extremity is limited to more than
shoulder level. See DeLuca v. Brown, 8 Vet.App. 202 (1995).
The competent medical evidence and the subjective lay
evidence supports a finding that the veteran is able to raise
his left arm to shoulder level prior to experiencing pain.
Therefore, a preponderance of the evidence is against an
evaluation greater than 20 percent under Diagnostic
Code 5201. There is no competent medical evidence or
subjective lay evidence which supports a finding that there
is ankylosis of the scapulohumeral articulation or that there
is fibrous union of the humerus. Therefore, a preponderance
of the evidence is against an evaluation greater than
20 percent under either of Diagnostic Codes 5200, 5202. On
the basis of the above analysis, 20 percent is the highest
evaluation which may be assigned for the veteran's bursitis
of the left shoulder. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R.
§ 4.7.
II. Low Back
The report of a July 1995 VA orthopedic examination reflects
that the veteran reported injuring his back during a
repelling incident. Since then, if he would sit too long, he
would develop pain in the left lumbar area and have muscle
spasms in the area as well. On examination, there was no
abnormal curvature of the lumbar spine. There was muscle
spasm in the region of the lower thoracic spine which was
slightly more marked on the left than the right. Range of
motion was accomplished in forward flexion to 90 degrees,
backward extension was to 20 degrees, lateral bending was to
45 degrees, bilaterally, and rotation was to 35 degrees,
bilaterally. No neurological deficits were noted. The
report of a July 1995 X-ray of the lumbosacral spine reflects
that no abnormalities were noted. The diagnoses included
residuals of trauma in the right lower thoracic and lumbar
spine.
An October 1996 VA outpatient treatment record reflects that
the veteran reported having hurt his back while lifting bags
at work. A remote history of trauma while repelling in the
Army was noted. The veteran denied radiation of pain to his
legs or buttocks. There was no sciatica or numbness. There
was paraspinal spasm in the lower back and limited range of
motion in flexion.
During a personal hearing in November 1996, the veteran
testified that his current employment was as a mail handler
with the Post Office. This required that he lift anything
from a letter to 75-pound sacks. He testified that his back
pain used to be every now and then, but it had become
constant. He was not receiving any physical therapy and had
no urinary or bowel problems. He had been given a shot to
relax his muscles approximately two months before. He
reported having muscle spasms approximately every day, but
not in the morning. He stated that he had lost three days
from work in the previous 13 months because of his back. The
Board finds the veteran’s testimony to be credible with
respect to this disability.
The reports of December 1996 VA orthopedic and neurology
examinations reflect that the veteran reported increasing low
back pain with radiation down the left leg. The orthopedic
examiner indicated that the neurologist would comment on any
evidence of radiculopathy. On orthopedic examination of the
lumbar spine, there was a slight increase in the normal
lumbar lordosis with significant muscle spasm in the sacral
spinalis muscle groups. Forward flexion was accomplished to
90 degrees with the complaint of discomfort, backward
extension was to less than 10 degrees with the complaint of
discomfort, and lateral bending was to 45 degrees and
rotation was to 35 degrees with minimal discomfort complained
of. On neurological examination, the veteran reported
radiating pain up the left side of his back and down his left
buttock to the back of his thigh. He indicated the pain
never completely went away. He denied any weakness,
paresthesias, or sensory changes. On physical examination,
motor testing revealed a strength of 5/5. Range of motion
and tone were within normal limits. Deep tendon reflexes
were 2/4 throughout and symmetrical. Toes were downgoing and
sensation was intact to light touch and pinprick. There was
minimally decreased vibration sense in the left foot. Tandem
gait was unremarkable and the veteran could walk on his toes
and heels without difficulty. X-rays of the lumbar spine
were reported to be within normal limits with disc space
heights preserved. The diagnoses included chronic
lumbosacral strain.
The veteran's service-connected low back strain has been
evaluated as 20 percent disabling under Diagnostic Code 5295.
Diagnostic Code 5295 provides that a 20 percent evaluation is
warranted for lumbosacral strain where there is muscle spasm
on extreme forward bending, loss of lateral spine motion,
unilaterally, in the standing position. A 40 percent
evaluation is warranted for severe lumbosacral strain with
listing of the whole spine to the opposite side, positive
Goldthwait's sign, marked limitation of forward bending in
the standing position, loss of lateral motion with
osteoarthritic changes, or narrowing or irregularity of joint
space, or some of the above with abnormal mobility on forced
motion. Diagnostic Code 5293 provides that a 20 percent
evaluation is warranted for moderate intervertebral disc
syndrome with recurring attacks and a 40 percent evaluation
is warranted for severe intervertebral disc syndrome with
recurring attacks with intermittent relief. Diagnostic
Code 5292 provides that moderate limitation of motion of the
lumbar spine warrants a 20 percent evaluation and severe
limitation of motion of the lumbar spine warrants a
40 percent evaluation.
The Board finds that the criteria required for a disability
evaluation in excess of 20 percent for low back strain have
not been met. Initially, the Board notes that while the
December 1996 orthopedic examination report reflects that the
examiner believed that the veteran's symptomatology suggested
degenerative disc disease, that examiner also indicated that
any neurologic changes would be discussed by the neurologic
examiner. The report of the neurology examination does not
indicate degenerative disc disease and X-rays revealed that
disc space heights were preserved. Therefore, the competent
medical evidence of record which tends to support a finding
that the veteran has intervertebral disc syndrome is
equivocal and defers to competent medical evidence that
reflects that the veteran does not have intervertebral disc
syndrome. Thus, a preponderance of the evidence is against
an evaluation greater than 20 percent under Diagnostic
Code 5293. Further, none of the criteria under Diagnostic
Code 5295 relative to severe lumbosacral strain have been
objectively shown by competent medical evidence. In this
regard, there is no competent medical evidence showing
listing of the whole spine to the opposite side, positive
Goldthwait's sign, marked limitation of forward bending in
standing position (noting that even with the veteran's
reported pain, forward flexion has consistently been
accomplished to 90 degrees and his low back range of motion
has also recently been described on examination as full), nor
has loss of lateral motion with osteoarthritic changes or
narrowing or irregularity of joint space been shown (noting
that X-rays reflect that vertebral body alignment is normal,
disc space heights preserved, and no evidence of bony
destruction) nor has it been shown that any of the above
exists with abnormal mobility on forced motion. Therefore, a
preponderance of the evidence is against an evaluation
greater than 20 percent under Diagnostic Code 5295. Further,
the Board finds that the evidence does not reveal any
functional loss due to pain, weakened movement, excess
fatigability, or incoordination as would be required by
§§ 4.40, 4.45, 4.59, noting that the competent medical
evidence reflects that, while the veteran reports discomfort
on accomplishing range of motion in the low back, no more
than slight limitation of motion has been shown in any of the
planes except extension and at the time of the December 1996
neurology examination, his range of motion of the low back
was described as full. Therefore, even with consideration of
the pain or discomfort reported by the veteran on motion of
the lumbar spine, a preponderance of the evidence is against
a finding that more than moderate limitation of motion of the
lumbar spine is demonstrated. Therefore, an evaluation
greater than 20 percent under Diagnostic Code 5292 is not
warranted. On the basis of the above analysis, 20 percent is
the highest evaluation which may be assigned for the
veteran's service-connected low back strain. 38 U.S.C.A.
§§1155, 5107; 38 C.F.R. § 4.7.
III. Left Shin
The report of a July 1995 VA orthopedic examination reflects
that the veteran reported left leg pain and having been
diagnosed as having shin splints. On examination of the left
leg, there was no bony abnormality, but there was tightness
in the paratibial muscles on the left side. The diagnoses
included shin splints, compartment syndrome, mild, left side.
The report of July 1995 X-rays of the left tibia and fibula
indicates normal bony alignment without evidence of fracture
or subluxation.
During the veteran's personal hearing in November 1996, the
veteran testified that his left leg would hurt after working
approximately two hours with pain moving into the kneecap and
down toward the ankle. He indicated that the pain was
affecting his knee and that he would try to extend his breaks
at work. He indicated he had lost no time from work due to
this disability.
The reports of December 1996 VA orthopedic and neurology
examinations reflect that the veteran described left leg pain
which he blamed on shin splints. On orthopedic examination,
there was no bony deformity in the tibia and no evidence of
anterior compartment syndrome. The orthopedic examiner
indicated that the veteran's shin splint pain seemed to be
persistent, but it was the examiner's belief that the left
leg pain was more related to the veteran's back.
The veteran's left shin splints have been evaluated as
noncompensably disabling under Diagnostic Code 5262.
Diagnostic Code 5262 provides that a 10 percent evaluation
may be assigned for slight knee or ankle disability secondary
to impairment of the tibia and fibula. A 20 percent
evaluation may be assigned for moderate knee or ankle
disability secondary to impairment of the tibia and fibula.
The Board finds that the criteria for a 10 percent evaluation
for left shin splints have been met. Although the orthopedic
examiner, in December 1996, indicated a belief that the
veteran's left leg pain was more likely related to his back,
the neurology examiner, as well as X-rays, did not associate
neurological findings in the left leg with the veteran's low
back. Further, the orthopedic examiner indicated that the
veteran seemed to have persistent shin splint pain and during
the veteran's personal hearing, he offered testimony, which
the Board finds to be credible, which indicates that the pain
radiated into his knee. On the basis of the above, the Board
concludes that there is subjective evidence that the left
shin splint pain causes slight disability of the left knee
and there is objective clinical evidence which supports a
finding that the veteran continues to have left shin splint
pain. On the basis of this analysis, the evidence is in
equipoise as to whether symptoms associated with the
veteran's left shin splints more nearly approximate the
criteria for slight left knee disability, warranting a
10 percent evaluation. In resolving all doubt in the
veteran's behalf, a 10 percent evaluation under Diagnostic
Code 5262 for left shin splints is warranted. 38 U.S.C.A.
§§ 1155, 5107; 38 C.F.R. § 4.7. However, moderate disability
of either the knee or ankle has not been demonstrated. In
this regard, the Board notes that there is no bony deformity
in the tibia on examination, nor is there any bony
abnormality in the tibia or fibula on X-ray and on the most
recent examination, there was no evidence of anterior
compartment syndrome and the objective medical evidence
demonstrates that left leg pain relating to left shin splints
causes no more than slight knee disability. Therefore, a
preponderance of the evidence is against an evaluation
greater than the 10 percent granted herein.
With respect to each of the issues, the potential application
of various provisions of Title 38 of the Code of Federal
Regulations have been considered, whether or not they were
raised by the veteran as required by the holding of the
United States Court of Veterans Appeals in Schafrath, supra.
The Board would point out, however, that in Floyd v. Brown,
9 Vet.App. 88 (1996), it was held that the Board does not
have jurisdiction to award an extraschedular evaluation
pursuant to the provisions of 38 C.F.R. § 3.321(b)(1) in the
first instance. In the instant case, however, there has been
no assertion or showing that the disabilities under
consideration have caused marked interference with
employment, necessitated frequent periods of hospitalization
or otherwise rendered impractical the application of the
regular schedular standards. In the absence of such factors,
the Board is not required to remand this matter to the RO for
the procedural actions outlined in 38 C.F.R. § 3.321(b)(1).
See Bagwell v. Brown, 9 Vet.App. 237 (1996); Shipwash v.
Brown, 8 Vet.App. 218, 227 (1995).
ORDER
An increased rating for bursitis of the left shoulder is
denied.
An increased rating for low back strain is denied.
An increased rating of 10 percent for left shin splint is
granted, subject to the laws and regulations governing the
payment of monetary benefits.
HILARY L. GOODMAN
Acting Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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